Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm

35 Pages Posted: 27 Apr 2015

See all articles by Gabriel Arkles

Gabriel Arkles

Northeastern University - School of Law

Date Written: 2014


The Prison Rape Elimination Act (PREA) is perhaps the most significant law reform project undertaken on U.S. prison issues in the twenty-first century. In the decade since PREA was enacted, it has been invoked by both plaintiffs and defendants and mentioned in hundreds of opinions, even though PREA does not create a private right of action or affirmative defense. This article provides the first scholarly analysis of the role of PREA in prison litigation. The author argues that courts have addressed PREA in ways that have disserved prisoners and contributed to the perpetuation of sexual harm.

The article first provides background on PREA and on the constitutional and statutory standards that govern most claims related to sexual abuse in detention. Second, it describes and analyzes the key ways in which PREA has failed prisoners. Third, it lays out proposals for judicial approaches to PREA that would make better doctrinal and normative sense than current trends, including using PREA to inform judicial understandings of “evolving standards of decency” under the Eighth Amendment. Fourth and finally, it reflects on the implications of this analysis for larger questions about law reform and social justice.

Keywords: Prison Rape Elimination Act, PREA

Suggested Citation

Arkles, Gabriel, Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm (2014). New York University Journal of Legislation and Public Policy, Vol. 17, No. 4, 2014, Northeastern University School of Law Research Paper No. 223-2015, Available at SSRN:

Gabriel Arkles (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

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